0120160753
03-11-2016
Dominica H.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dominica H.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120160753
Agency No. 7K1C15011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 24, 2015, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse (GS-0620-09) at the 325th Medical Operations Squadron ("Medical Operations") at the Tyndall Air Force Base in Tyndall AFB, Florida.
On October 29, 2015, Complainant filed a formal complaint, alleging that the Agency subjected her to discrimination on the bases of race (African-American) and color (Black).
Many of Complainant's allegations reference disciplinary action taken against her over an internal investigation of the Allergy & Immunizations Unit of Medical Operations, where she worked from 2012 through 2014. Complainant was removed from Allergy & Immunizations and placed in the Maternal Health Offices; and formally disciplined on January 29, 2015, when she was issued a letter proposing a five day suspension. Complainant appealed the letter on or around February 27, 2015 (resulting in a decrease from 5 to 1 day). In March 2015, Complainant was reassigned to the Medical Operations Family Health Clinic, which was where she was working when her other complaints of discrimination arose in May 2015.
Complainant names eight (8) responsible management officials ("RMOs") in the instant complaint. Five of the RMOs are within Complainant's chain of command: Complainant's immediate supervisor ("S1") the Flight Chief of the Maternal Child Unit (Caucasian, White); Complainant's second line supervisor ("S2"), Commander of the Maternal Child Unit (Caucasian, White); the Commander of Medical Operations ("C1") (Caucasian, White), the Commander of the Medical Group ("C2") (Caucasian, White); and Complainant's first line supervisor in the Family Health Clinic as of May 2015 ("S3") (African American, Black).
The remaining RMOs include a Staff Sergeant (Caucasian, White) who was temporarily assigned to Complainant's investigative file as a third party unbiased reviewer ("UR"); the Superintendent of Medical Operations (Caucasian, White), who reviewed the investigation and recommended disciplinary action against Complainant, ("SI"); and a Labor Relations Officer (African American, Black) who advised C1, C2, and SI on the suspension ("LRO").
Complainant's claims are as follows:
1. In or around September 2012, Complainant was moved from the Family Health Clinic to Allergy & Immunization without processing any personnel actions by C1, C2, S1, S2, SI, UR, and LRO;
On or about January 29, 2015:
2. C1 allowed SI to attend the disciplinary session in which she was presented with the proposed letter of suspension; arises in part from disciplinary action taken as a result of an internal investigation with findings that reflected poorly on Complainant
3. C1, C2, and LRO did not provide her with a copy of the Douglas Factors2;
4. C1, C2, S2, SI, UR, and LRO denied her the opportunity to participate in an investigation;
5. C1, C2, and LRO denied her request for a copy of her disciplinary file;
6. C1, C2, S1, S2, SI, UR, and LRO did not provide her with a reason for the letter of suspension;
7. C1, C2, S1, S2, SI, UR, and LRO did not apply the Gregory Decision3;
8. C1, C2, S1, S2, SI, UR, and LRO denied her due process as specified in the applicable Collective Bargaining Agreement;
9. C1, C2, S1, S2, SI, UR, and LRO did not question her prior to issuing the letter of proposed suspension in accordance with Agency policy;
10. In or around March 2015 she was reassigned to work in the Family Health Clinic and C1, C2, S1, S2, SI, UR, and LRO did not process any personnel action;
11. On May 4, 2015, she did not receive a monetary or time off award when her Performance Appraisal was issued;
12. On or about May 4, 2015, C1, C2, S1, S2, SI, UR, and LRO did not articulate the reason why she did not receive a monetary or time off award;
13. On May 15, 2015, she received a feedback form with an incorrect name, occupation, and no copies of additional pages;
14. On or about May 15, 2015, C1, C2, S1, S2, SI, UR, and LRO had not provided her with evaluation of her core duties as required by directive;
15. On or about May 15, 2015, S3 and C2 committed a procedural and harmful error on a form; and
16. On or about October 16, 2015 the EEO counselor failed to furnish her with a copy of the Notice of Final Interview letter.
The Agency dismissed claims 1 through 15 as untimely pursuant to 29 C.F.R. � 1614.107(a)(2), and 29 C.F.R. � 1614.105(a)(1), and claim 16 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
Claims 1 - 15
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the latest of the alleged discriminatory events occurred on May 15, 2015, but Complainant did not initiate contact with an EEO Counselor until August 4, 2015, which is beyond the forty-five (45) day limitation period.
Complainant argues that she attempted to initiate contact with an EEO Counselor in July of 2015 and to also challenge a June 19, 2015 determination on her appeal that decreased her suspension from five days to one day. Complainant discussed these matters during EEO counseling, yet failed to include them in her formal complaint. We have found that when a Complainant received counseling on an allegation, but did not go forward with a formal complaint on that allegation, the complainant was deemed to have abandoned the allegation. See Small v. United States Postal Serv., EEOC Request No. 05980289 (July 16, 1999) The only EEO Counselor contact date we may consider is the one of record, August 4, 2015, well past the forty-five (45) day limitation period.
Claims 1 through 15 were properly dismissed as untimely.
Claim 16
Complainant alleges the Agency did not provide her with a copy of the Notice of Final Interview letter. To the extent she is alleging dissatisfaction with the processing of her complaint, the record and Complainant's own statement on appeal demonstrate that she was not harmed by this alleged discriminatory act because she was able to timely complete and file her Formal Complaint.
Claim 16 was properly dismissed.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
March 11, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981)
3 United States Postal Serv. v. Gregory, 534 U.S. 1 (2001)
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